2025 PLP 1786 (YLR)

Abdul Fayaz, J.

By this single judgment, we propose to decide this Criminal Appeal bearing No. 348-M/2023 as well as the connected Cr.R. No. 91-M/2023, as both these cases are the outcome of one and the same judgment dated 10.10.2023, rendered by learned Additional Sessions Judge-VI/Judge Model Criminal Trial Court/Izafi Zilla Qazi, Swat, in case FIR No. 521 dated 17.10.2019 under sections 302/201 P.P.C, at P.S. Banr, District Swat, whereby the appellant was convicted and sentenced as under: i) Under Section 302(b) P.P.C Simple imprisonment for life (25 years) as ta'zir and to pay Rs.10,00,000/-as compensation to legal heirs of the deceased Muhammad Sher in terms of S. 544-A, Cr. P.C. and in default of payment of the above compensation, he was ordered to further undergo simple imprisonment for six months. ii) Under Section 201 P.P.C. Simple imprisonment for 02 years with fine of Rs. 50,000/- and in default thereof, he was ordered to undergo further two months simple imprisonment. The above sentences were ordered to be run concurrently while the benefit of Section 382-B, Cr.P.C. was also extended to the appellant/convict Imran Khan.

2. The prosecution story, according to the FIR (Ex.PW 1/1), is that the complainant Sabah Khan (PW-7) while present with the dead body of deceased Muhammad Sher, reported the matter to the local police at Casualty Hospital, Saidu Sharif Swat, that on the fateful day, he was present in his house. He received an information that his brother/deceased has been shifted to Casualty Hospital in injured condition. As such, he rushed to the said hospital where he found his brother dead. After enquiry, he got knowledge that at morning time of the day of occurrence, a timely verbal altercation over certain money, i.e., Rs. 500/-has taken place between his brother/deceased Muhammad Sher and one Khurshid son of Shah Zarin. At the time of occurrence, his brother/deceased was present at the spot, when in the meanwhile, the appellant/convict Imran son of Shah Zarin, while armed with weapon of offence, fired at his brother/deceased, as a result whereof, he got hit at his head and died on the spot. The occurrence was stated to have been witnessed by Tariq son of Lal Zarin (PW-5) along with other persons present at the spot. Motive behind the occurrence was mentioned as verbal altercation. Report of the complainant was recorded in shape of Murasila on the basis of which the above-referred FIR was registered against the appellant/convict.

3. Initially, challan under section 512 Cr. P.C. was submitted against the appellant, however, upon his arrest and on completion of investigation, supplementary challan was submitted against him before the trial Court and formal charge was framed against him on commencement of trial, to which he did not plead guilty and claimed trial. The prosecution, in order to prove its case, examined as many as 15 PWs and thereafter, closed its evidence. After examination of the appellant under Section 342, Cr. P.C., the learned trial Court, vide impugned judgment dated 10.10.2023, found him guilty of the charges, as such, convicted and sentenced him in the manner as reproduced in para-1, above. Being aggrieved, the appellant/convict has filed the instant appeal against his conviction and sentence, whereas, the complainant has filed the connected criminal revision petition, seeking enhancement of the sentence awarded to the appellant/convict by learned trial Court.

4. Learned counsel for the appellant/convict Imran Khan stated that the presence of eye-witness has not been proved by the prosecution and that the conduct of eye-witness (PW-5) is un-natural. He also stated that the aforesaid eye-witness has not given any reasonable ground to have witnessed the occurrence.

5. Arguments of learned counsel for the parties as well as the learned A.A.G representing the State were heard and the record perused with their valuable assistance.

6. At first instance, it would be relevant to reproduce examinations-in-chief of PW-5, Tariq and PW-8, Dr. Imran Fazal, as under: "PW-05: Statement of Tariq aged 37/38 years son of Lal Zarin, resident of Yakh Kohai Mingora, Tehsil Babozai, District Swat, on oath. Stated that on the day of occurrence, I along with deceased Muhammad Sher were going to the house of my paternal uncle, namely Bacha Ali. In the meanwhile, accused Imran son of Shah Zarin resident of Yakh Kohai appeared from the street No.3 of Wahab Naggar, having pistol in his hand and all of sudden, he had opened fire on the body of Muhmmad Sher, which hit him and he fell on the ground. With the assistance of one Muhammad Ali son of Taj and Amjad Iqbal, my brother, we had put in Rickshaw and carried to hospital Saidu Sharif. He was declared dead by the concerned doctor after examination. Previous Sunday, i.e. 13.10.2019, before the day of occurrence, Accused Imran and deceased Muhammad Sher had fought at Timergara with each other. On 17.10.2019, one Khurshid, brother of the accused Imran and deceased Muhammad Sher fought over five hundred rupees. I am the witness of the murder of Muhammad Sher. On 18.10.2019, I had proceeded to the place of occurrence where I had pointed out the places of accused, deceased and myself to the concerned police officials and thereafter the police officer had taken my signature on site plan. On the same date, my statement was recorded by IO under section 161 Cr.P.C. Likewise, I had recorded my statement under section 164 Cr,P.C on 19.10.2019. I have perused my statement which carries my thumb impression, the statement is Ex.PW5/1 and is placed on file." PW-8: Statement of Dr. Imran Fazal CMO Saidu Group of Teaching Hospital, Saidu Sharif, Swat. On oath stated that on 17.10.2019, I was on duty in Casualty Saidu Group of Teaching Hospital Swat. A dead body of Muhammad Sher son of Jallat Khan resident of Yakh Kohay Mingora District Swat was brought by Saba Khan having CNIC No. 15602-6110896-3 to Hospital and produced by local police for postmortem examination along with injury sheet and inquest report. I started examination of the dead body of Muhammad Sher at 06:50 pm and give the following findings: Date and hour of: 06:00 pm dated 17.10.2019 Examination of body: 06:50 pm Death approximately: 06:20 pm Information furnished by police

FAI I. External Appearance: There is no mark of ligature on neck and dissection, etc. Condition of Subject Stout Emaciated, Decomposed, etc. Clothing: White shalwar and Qameez rigor mortis not fully developed. Wounds, Brusises, Position, Size and Nature The young person body arrived had three types of entry wounds and two exit wounds, the body arrived was wearing Shalwar and Qamees and was covered with blood and rain water due to heavy rain on that day, charring marks were not present. Entry No. 01: on occipital region (back) 1x2 cm. Exit No 01: on forehead (middle frontal bone) 2x2 cm. Entry No. 02: on left occipital region/parietal behind left ear 01x2 cm. Exit No 02: right temporal/mandible region under right ear 02x2 cm. Entry No. 03: there was slight cross, FAI noted on left below scapular region length 03cm, Diameter 0.5 cm. II- Cranium and Spinal Cord: multiple fracture with brain matter out on exit side for which X-Ray skull is advised. III- Thorax

Nil IV- Abdomen 1-walls-intact 2- Peritoneum - Intact 3- Mouth, Pharynx and Oesoghagus-intact 4- Diaphragm - intact 5- Stomach and its contents - intact 6- Pancreas - Intact 7- Small intestines and their contents intact 8- Large intestine and their contents intact 9- Liver-intact 10- Spleen - Intact 11 Kidneys - Intact 12-Bladder - Intact 13- Organs of generation external and internal-intact V- Muscells, Bones and Joints- two entry and two exit FAl on skull, there is one slight slide wound (FAI) on below left scapula Fracture: Multiple VI- Remarks by Medical Officer The young person body brought had 03 types of Injury and 02 exit with no charring marks, there was brain matter noted outside of the exit wound (02) on skull. The cause of death is due to brain death of two fire arm injury on skull. Probable time that elapsed - A-between injury and death: 15 to 30 minutes. B-between death and postmortem: one hour

one and half hour. Today, I have seen my report on injury sheet which is Ex:PW-8/1 and postmortem report on postmortem proforma, consisting of 06 pages, which is Ex: PW-8/2. My reports are correct and correctly bear my signature and stamp." The prosecution has produced in its support the above two witnesses (PW-5 and PW-8). It has been admitted by PW-5, Tariq during the course of his cross-examination that PW Amjad Iqbal, who has been examined as PW-6, is his elder brother and that his sister Mst. Hameeda was married to the deceased Muhammad Sher. He also admitted that he is doing the business of readymade roofs and blocks and the place of his business is situated at a distance of Kilometer from the place of occurrence. He further admitted that he used to go to the place of his business in routine at 07/08 a.m. and switched off his duty at Asr or sometime at Maghrib and even sometime at Isha. He further admitted that his house is situated at a distance of 700-800 feet from the place of occurrence. He further admitted that he is living along with his brother (PW-6). He admitted in his cross-examination that at the time of firing, the appellant/convict came out from Street No. 3 of Wahab Nagar and fired at the deceased Muhammad Sher. The appellant/convict and the deceased were face to face at the time of firing.

7. Now, if we see the postmortem report of the deceased Muhammad Sher, which has been prepared by the Doctor (PW-8), there are three firearm entry wounds on the person of the deceased and all the three entry wounds are on the backside of the body of deceased. Furthermore, it is the version of PW-5 that he along with the deceased Muhammad Sher were going to the house of his paternal uncle namely Bacha Ali, while on the other hand, PW-6 in his statement has stated that he also deals with the business of readymade roofs at Ihingaro Dherai. He also stated that on 17.10.2021, brother of the appellant/convict namely Khurshid and the deceased quarreled with each other due to non-payment of five hundred rupees by Khurshid, brother of the appellant/convict. He further stated that he had pacified them and returned back to his home at evening time. He further stated that Khurshid is his paternal cousin, who had come to the house of paternal uncle namely Bacha Ali, where the said Khurshid started weeping and went on to say that he is an orphan and that's why he has beaten him. At that time, the appellant/convict Imran Khan reached there and left the house of his uncle Bacha Ali after spending 2/3 minutes. After 15/20 minutes from the departure of the appellant/convict, he heard fire shots and when he came out of the house, he saw his brother/deceased Muhammad Sher soaked in blood, who was lying on the road. Here, in examination-in-chief, this witness (PW-6) has admitted that he has not seen the appellant/convict while firing at the deceased Muhammad Sher. This witness has also exonerated the presence of PW-5, Tariq, his own brother. Even otherwise, PW-5 has stated that he along with the deceased Muhammad Sher were going to the house of his paternal uncle Bacha Ali, while PW-6 has recorded a contradictory statement to that of PW-5, as he has stated that he was coming from the house of his paternal uncle Bacha Ali. Hence, keeping in view the facts and circumstances coupled with the conduct of PW-5 and his contradictory statement with PW-6, this Court has reached to the conclusion that the occurrence was an unwitnessed one and nobody was present at the time of murder of the deceased Muhammad Sher and as such, it would cast serious doubts on the case of the prosecution, benefit of which must be given to the appellant/convict. Guidance is sought from the judgment of the august Supreme Court rendered in the case of Iftikhar Hussain and others v. The State reported as 2004 SCMR 1185, wherein the following observations were made: "It is to be noted that in his cross-examination, defence successfully, brought on recordmaterial contradictions which have impaired the intrinsic value of his evidence. We are conscious of the fact that evidence of a chance witness cannot be brushed aside merely for the reason that he happened to be at the place of incident incidentally but to accept evidence of such witness his presence at the spot is deemed to be necessary and prosecution is supposed to bring on record convincing evidence to establish the same".

8. Yet another thing which creates doubt in the prosecution story is that the occurrence has allegedly taken place in the presence of PW-5 and PW-6, who managed the shifting of dead body of the deceased to Saidu Sharif Hospital, Swat, while the report was not recorded by them rather waited for the arrival of brother of the deceased namely Sabah Khan (PW-7). No doubt, the complainant has stated in his statement that the occurrence, besides others, has been witnessed by PW-5 Tariq. This creates doubt over the credibility of the FIR for the reason that why the real brothers-in-law, whose sister was married to the deceased, have not reported the matter at their own rather waited for the arrival of the complainant namely Sabah Khan (PW-7), which otherwise cast serious doubts. Moreover, the occurrence has taken place on 17.10.2019 while the pointation has been made by PW-5 Tariq on 18.10.2019 and his statement was also recorded, then why his report was delayed for almost 24 hours. As such, this Court would consider the statements of both the eye-witnesses as chance witnesses. No doubt, they have admitted in their cross-examinations that their house is situated at a distance of 700-1000 feet from the place of occurrence but they seem to be chance witnesses, where they have to show for their presence some physical circumstance, which would suggest that they had actually seen the occurrence and were present with the deceased Muhammad Sher at the time of occurrence. However, both these witnesses seem to be chance witnesses and a chance witness is a one who should normally be where and when he professes to have been, then he is declared to be a highly interested witness, therefore, his evidence needs strong corroboration, which in the instant case is missing. Reliance in this regard may be placed on the judgment of the Hon'ble apex Court rendered in the case of Naveed Asghar and 2 others v. The State reported as PLD 2021 SC 60, wherein it was held that: "Reading of the statement of Mirza Muhammad Umar (PW-13) shows that he is a chance witness: a witness who in view of his place residence or occupation and in the ordinary course of events is not supposed to be present at the place of the occurrence but claims to be there by chance. Testimony of such witness requires cautious scrutiny and is not accepted unless she gives satisfactory explanation of his presence at or near the place of the occurrence at the relevant time."

9. So far as maintaining conviction of a convict on a capital charge, like the one in hand, on the basis of testimony of chance witnesses, the Court had to see and required corroboration while relying on such evidence. In this regard, wisdom can be drawn from the case of Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others reported 2017 SCMR 1710, wherein the august Supreme Court has observed that: "It is well settled by now that in order to maintain conviction of a convict on capital charge on the basis of testimony of chance witnesses the court has to be at guard and corroboration is to be sought for relying upon any such evidence. But no corroboration is available in this case. As per contents of the FIR, three fire shots were attributed to Tanvir Ahmad alias Bhaga (respondent No. 2) whereas two fires on the person of Sikandar Ali were attributed to Akhtar Hussain alias Kaka (respondent No. 1). However, as per the medical evidence furnished by Dr. Fakhar-u-Zaman (PW.4) eight firearm injuries were observed on the dead body which included four entry and four exit wounds, therefore, the medical evidence is not in line with the ocular account. The alleged recoveries of pistols at the instance of respondents Nos.1 and 2 and positive report of Forensic Science Laboratory (Exh.PR) to the extent of Tanvir Ahmad alias Bhaga (respondent No. 2) is also inconsequential as the said report was not put to the respondents Nos. 1 and 2 while examining them under section 342, Code of Criminal Procedure. It is well settled by now that a piece of evidence not put to an accused while examining him under section 342, Code of Criminal Procedure cannot be used against him for maintaining his conviction. In view of the above, the testimony of the witnesses of ocular account who were chance witnesses remained uncorroborated and it is highly unsafe to rely upon their testimony." Similarly, in the case of Mst. Sughra Begum and another v. Qaiser Pervez and others reported as 2015 SCMR 1142, it was also held: "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt." Further reliance in this respect may also be made on the judgment reported as 2023 YLR 24 (Lahore).

10. Apart from the above facts, the Investigating Officer had recovered four empties of 30 bore but astonishingly, same have not been sent to the FSL for chemical examination that whether the same have been fired from one and the same weapon or different. No doubt, FSL report is available on the file, which has only disclosed that the empties, which were recovered from the place of occurrence, were that of 30 bore. The Investigating Officer should have sent the empties recovered from the place of occurrence to the FSL with the question as to whether these empties have been fired from one and the same weapon or otherwise.

11. Another aspect of this case is that in the instant case, the uncle of PWs-5 and 6 by the name of Bacha Ali was an important witness, he should have been examined by the prosecution to have met with PW-6 on the day of occurrence regarding certain complaint, however, non-examination of the said witness would give rise to an adverse inference in the circumstances of the case. Reliance is placed on Muhammad Rafique and others v. The State and others reported as 2010 SCMR 385, wherein it was held: "It is well-settled that if any party the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution. Be that as it may, the prosecution examined Muhammad Ramzan P.W. 14 to prove the conspiracy. The learned High Court examined this aspect of the case and rightly reached the conclusion that the prosecution failed to prove this piece of evidence. We do not find any reason to interfere with such findings." Similarly, in the case of Riaz Ahmed v. The State reported as 2010 SCMR 846, it was also held: "One of the eye-witnesses Manzoor Hussain was available in the Court on 29-7-2002 but the prosecution did not examine him, declaring him as unnecessary witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court, his evidence would have been unfavourable to the prosecution." So much so, since no evidence was produced by the prosecution to substantiate the motive part of the appellant/convict to have committed the murder of the deceased Muhammad Sher, specifically in light of the fact and circumstances. The Investigating Officer has not investigated this aspect of the case to have produced an independent witness in support of their case.

12. So far as the motive which was mentioned by the complainant as certain money dispute is concerned, the prosecution has not produced any evidence in this regard. Although it is well-settled law that motive is not the requirement of law but it is also equally a settled rule that once a motive is set up by the complainant, then he is bound to prove the same through evidence. In case of his failure to do so, the prosecution must suffer the consequence and not the defence. In the case of Pathan v. The State reported as 2015 SCMR 315, the Hon'ble apex Court has observed that: "True that, motive in legal parlance is ordinarily not considered as a principal or primary evidence in a murder case, however, in some rare cases like the present one, the motive would play a very vital and decisive role for committing a murder. As the motive has almost disappeared for want of proof and being entirely feeble, artificial and not at all appealing to a prudent mind, therefore, it has rendered the entire episode of the tragedy doubtful. On this score too, the prosecution case is liable to be discarded as a whole." The overall prosecution evidence would give an outcome that the occurrence has not taken place in the mode and manner as alleged by the prosecution. In such circumstances, the prosecution has badly failed to prove its case against the appellant/convict beyond reasonable doubt. It is settled principle of law that when a simple circumstance creates reasonable doubt in a prudent mind about the guilt of an accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Guidance is sought from Ayub Masih v. The State (PLD 2002 SC 1048) and Tariq Pervez v. The State (1995 SCMR 1345).

14. In light of what has been discussed above, this appeal is allowed, the impugned judgment is set aside and consequently, the appellant/convict Imran Khan son of Shah Zarin is hereby acquitted of the charge levelled against him in the present case. He be released forthwith from jail, if not required in any other case. As a result of acquittal of the appellant/convict by allowing this appeal, the connected Cr.R. No. 91-M/2023 filed by the complainant for enhancement of his sentence is dismissed for having become infructuous.

15. Above are the reasons of our short order of the even date. JK/44/P. Appeal allowed.